Korea Housing Guarantee Co., Ltd. (Law Firm Korea, Attorneys Lee Jae-in et al., Counsel for the defendant-appellant)

Defendant 1 and three others (Attorney Lee Nam-gil, Counsel for the defendant-appellant)

August 28, 2014

Changwon District Court Decision 2012Da70671 Decided July 26, 2013

1. The part of the judgment of the court of first instance against the Defendants shall be revoked, and all of the plaintiff's claims corresponding to the revocation shall be dismissed.

2. The plaintiff's appeal and the claim extended in the trial are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

As to the Plaintiff, Defendant 1’s KRW 13,535,00 and KRW 11,098,00 among them, from June 1, 2013 to May 1, 2014; Defendant 2 from January 1, 2009 to KRW 1,580,00; Defendant 3 from April 20, 2013 to KRW 8,989,850; Defendant 4 from the following day to 9,494,150 to 11,00 to 30 won; Defendant 2 from May 28, 2014 to 200 to 30% of the Plaintiff’s claim purport; Defendant 4 from the date to 13,301,00 won to 9,494,150 to 150 won; Defendant 2 from May 1, 2014 to 208 to 20% of the Plaintiff’s claim purport of the claim; and Defendant 4 from each of this case’s claim.

2. Purport of appeal

A. The plaintiff

The judgment of the first instance shall be modified as follows. The same judgment shall be sought as stated in the purport of the claim.

B. The Defendants

The text of paragraph (1) is as follows.

1. Basic facts

A. The Construction of the Masan General Construction Co., Ltd. (hereinafter “Masan General Construction”) decided to newly construct the ○○○○○○○○○○ Building on the ground of the 16th parcel of land except the address omitted in Kimhae-si (former name was changed to △△△ apartment; hereinafter “the apartment of this case”).

B. On June 3, 1999, the Housing Business Mutual Aid Association (amended by Act No. 5908 of Feb. 8, 1999, pursuant to Article 5 of the Addenda of the Housing Construction Promotion Act as amended by Act No. 5908 of Feb. 8, 199), concluded a housing sale guarantee contract with the buyer responsible for the refund of the down payment and intermediate payment paid by the buyer, or the performance of the sale of the apartment in this case, if the sale of the apartment in this case is impossible by the buyer of the apartment in this case.

C. Around June 1998, the construction of the apartment of this case suspended the new construction of the apartment of this case. A housing project mutual aid association around that time changed the name of the company that received the right of construction of the apartment of this case from the construction of the 000 integrated mountain construction from the 1998 comprehensive construction to the 00 construction company that received the transfer of the right of construction of the apartment of this case (hereinafter “the 16th 16th 2002 construction”), and entered into a contract on the succession of the new apartment of this case with the 00 construction company that received the transfer of the right of construction of the apartment of this case and had the 00 construction company become the project owner and carried out the remaining construction and the sale of the apartment of this case. Accordingly, the housing sale guarantee for the 00 comprehensive

D. As long as the construction of the apartment of this case was discontinued due to the suspension of the construction of the apartment of this case due to the default on October 1999, the Plaintiff, which was subject to comprehensive succession of the rights and obligations of the Housing Business Mutual Aid Association, was directly completed the apartment of this case and completed the registration of initial ownership on July 6, 2004.

E. The land, which is the site of the apartment of this case, was changed to 2404 m2 m2 as of the date of the change of land category and merger (the address 2 omitted), 1, 242 m2 m2, 2, 7534 m2, 3, 587 m2, 487 m2, 587 m2, 584 m2, 584 m2, 584 m284 m2, 5, 50 m24 m2, 240 m2, 240 m2, 60 m2, 3, 4, 5 m2 (the address 5 m2, 5 m2, 4

F. The registration of transfer of ownership in the name of the Plaintiff was completed as of June 12, 2001 by the Changwon District Court, Kimhae-si, 1902 square meters of forests and fields, which are public property in the city of Kimhae-si, Kim Jong-si, Kim Jong-si, the Seoul Special Metropolitan City ( Address 2 omitted), as of June 12, 2001, and the registration of transfer of ownership in the name of the Plaintiff was completed as of December 19, 2001, as of December 24, 199, as of June 12, 2001, as of June 12, 2001, as of June 48468, 199, as of December 29, 2009, the registration of transfer of ownership in the name of the Plaintiff was completed as of December 19, 203.

G. With respect to each of the lands listed in Articles 2 through 5 of the instant case ( irrespective of whether before and after the annexation), the registration of ownership transfer was completed in the name of Changwon District Court, Kimhae registry, the Changwon District Court, No. 41853, Jun. 29, 1998, which was received as of June 26, 1998, with the number of No. 41855, Jun. 29, 1998, the registration of ownership transfer was completed in the name of the Plaintiff’s trust property as of June 29, 1998, with the number of No. 41855, which was received as of June 29, 1998, and the registration of ownership transfer was completed in the name of the Plaintiff’s trust property under the name of No. 3094, Apr. 4, 200; 2008.

H. Since July 6, 2004 with respect to each of the instant lands, the registration of ownership preservation was completed on the following grounds: (a) on July 6, 2004, the registration of ownership preservation of the instant apartment house was completed; (b) the registration was completed on the ground that it was a site ownership right as 12810.0214/132 of ownership; and (c)

I. Meanwhile, △△△△ apartment apartment building building (hereinafter “instant commercial building”) was newly constructed on the basis of the parcel number of each of the instant land. Kimhae-si was issued a provisional attachment order No. 99Kadan18612, Nov. 8, 199 with respect to the instant commercial building, which was the state of non-registration and incomplete registration of the registry, and the provisional attachment order No. 99Kadan18612, which was issued on November 8, 1999. On November 8, 1999, the preservation of ownership was completed on the ground of the commission of provisional attachment registration as to the instant commercial building, and on November 22, 1999, the registration of establishment was completed, which was the maximum debt amount of 6,630,000,000 won, debtor0 construction, and the Korea Housing and Commercial Bank Co., Ltd. (hereinafter “National Bank Co., Ltd.”).

E. The instant commercial building was approved for use on June 2, 2004. At the time, the registration of division was completed only with No. 1 1, 246.35 square meters, No. 1, 366.35 square meters of underground floors (including parking lots), and No. 30.75 square meters of underground floors, and on Nov. 22, 1999, on the ground of sale due to voluntary auction at the auction procedure conducted on Nov. 1, 2007, the first floor No. 1 was divided from No. 201, Dec. 10, 2008; No. 251, Dec. 1, 2008; and No. 241, Dec. 1, 2008; and Defendant No. 165, May 29, 2008; and Defendant No. 3144, May 1, 2016.

(k) On the other hand, the copy of the register of the shopping mall of this case is indicated as the address of each land of this case, but the actual location of the shopping mall of this case is limited to part of the land of this case No. 2 and 5.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 16, Eul evidence Nos. 1 through 17 (including each number), a video, a fact inquiry of the time of the trial of the party Kimhae, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Among each of the instant lands, the remaining 420.9786 square meters remaining after the ownership transfer is registered as the right to a site of each of the instant apartment units. The Defendants occupied and used the instant commercial building site without any title (hereinafter “instant area of land”). Therefore, the Defendants, the owners of the instant apartment buildings, are obliged to return unjust enrichment from the rent party due to the occupation and use of the instant commercial building site to the Plaintiff.

B. The defendants' assertion

1) The area of 420.9786 square meters claimed by the Plaintiff to be possessed by the Defendants is merely the area remaining after the ownership transfer is registered as a site ownership of each of the instant apartment units among each of the instant apartment units, and thus, it cannot be deemed as the area occupied by the instant commercial building.

2) The partitioned ownership of the instant commercial building was established around November 8, 199, and at the time, the long-term construction was established as the purchaser or the other party to the instant commercial building, and the right to use the instant commercial building as the purchaser or the other party to the instant loan contract, and the right to use the instant commercial building as the land for the purpose of the instant commercial building was held by each trust contract or the trustee’s consent to use the instant commercial building. Even if it is not so, at least around October 20, 2003, the land of the instant building was completed by the ownership transfer registration for the reason of the reversion of trust property to the long-term construction. Accordingly, the right to use the site for the instant commercial building was established.

3) The Defendants acquired the instant commercial building, which is an exclusive ownership, through an auction, etc., and accordingly acquired the right to use the site, so the Defendants’ possession of each of the instant commercial building among the instant land is a legitimate right, and the Plaintiff’s assertion is without merit.

C. Key issue of the instant case

The facts that the Plaintiff is the owner of the land in dispute among the land in this case, and the facts that the Defendants currently possess the land portion through the commercial building in this case are no dispute between the parties. Thus, the issue of this case is whether the Defendants were entitled to use the land portion for the aggregate building, i.e., whether they were entitled to use the land portion for the aggregate building. Thus, this is examined in this case.

3. The judgment of this Court

A. Determination of the commercial building site of this case

According to Articles 2 and 4 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act"), the site of the aggregate building is the land (legal site) and the land stipulated by the rules or notarial deeds on the land where one building to which the section for exclusive use belongs belongs. Thus, the land in question where the commercial building in this case is located, that is, the statutory site is limited to part of the land in this case No. 2 and 5, as recognized earlier. The plaintiff did not submit any data that can be deemed that all the sectional owners of the commercial in this case were the site of this case as the site of the commercial in this case for the commercial in this case by the rules or notarial deeds. Accordingly, the site of the commercial in this case is limited to part of the land in this case No. 2 and 5, which is the land in which the commercial in this case was actually located (the plaintiff asserted that each of the land in this case was the site of the apartment in this case by submitting evidence No. 4-1 and 2, and did not submit the regulations, etc. as to the commercial in this case).

Therefore, I would like to judge only the establishment of the right to use the site of the land of this case Nos. 2 and 5.

B. Determination as to the establishment of divided ownership of each section of exclusive ownership of the commercial building of this case

Since the fact that ownership was acquired after the construction of the instant commercial building, which is an aggregate building, is not disputed between the parties, it will be examined at any time whether the sectional ownership of the first floor, the first floor, the first floor, and the second floor, which are the exclusive ownership of the instant commercial building, is constituted.

In light of the following circumstances acknowledged by the evidence as seen earlier, i.e., ① the construction of the instant apartment and the construction of the instant commercial building seems to have been suspended due to the bankruptcy around October 199, ② the instant commercial building deviates from the scope of guarantee by the Plaintiff, and thus, the Plaintiff appears to have not completed the instant commercial building through the additional construction. ③ The section for exclusive use of the instant commercial building was completed on November 8, 1999, after the date when the construction was suspended, after November 1, 1999, and ④ the instant commercial building was unsold until the time when the decision to commence the sale was rendered on November 1, 2007, and it appears that the ownership preservation of the instant commercial building was in progress at the auction procedure as at the time of the completion of the registration of initial ownership preservation on November 8, 199, and it appears that the section for exclusive use of the instant commercial building was in progress as at the latest as at November 198, 199.

C. Determination as to the right to use each of the lands Nos. 2 and 5 of the instant case in the long-term construction

1) Relevant legal principles

The right to use a site is a right that a sectional owner has on the site of a building in order to own the section for exclusive use, not necessarily confined to the real right such as the ownership of the site, but the right to use the site may also be the right to use the site, and where the content of the trust contract is entered in the original trust register recognized as a part of the trust registration, it may oppose a third party. However, the right to use the site shall remain effective as a right, and thus, the right to use the land which has become extinct after it becomes void shall not become the right to use the site for the section for exclusive use (see Supreme Court Decision 2010Da15158, Sept. 8, 201

2) Determination

As to the land of this case 2 through 5, the Changwon District Court Kimhae registry office of June 29, 1998 (No. 41853), the registration of transfer of ownership in the name of long-term construction on the ground of sale as of June 26, 1998 (No. 41855) has been completed on June 29, 198, and the registration of transfer of ownership in the name of the mutual-aid real estate trust was completed on the ground of the trust of June 29, 1998 (No. 4185), and the registration of transfer of ownership in the name of the truster to the land of this case was approved by the owner of the same registry office as of April 4, 2002 (No. 29794), and the registration of transfer of ownership in the name of the plaintiff as of April 3, 200, which was approved by the owner of the trust property of this case as of April 21, 2003.

According to the above facts, in order to build and sell the apartment houses and ancillary and welfare facilities of this case, since the use of each land of this case is necessarily necessary, the use of the land of this case in long-term construction and the housing mutual-aid real estate trust and the plaintiff [the plaintiff who is a new trustee pursuant to Articles 48(1) and (2) and 26(2) of the former Trust Act (amended by Act No. 10924, Jul. 25, 201)] enter into each of the above trust contracts aimed at this purpose, and the above trust contracts are deemed valid by the date of the closing of argument in the trial. Accordingly, it is determined that the housing mutual-aid real estate trust and the plaintiff grant the right to use land of each land of this case 2 through 5 to long-term construction through the above trust contract or the consent to use the land accordingly.

Therefore, the right to use the land of this case, which is the site of the commercial building of this case, was established as the right to use the site for the commercial building of this case around November 8, 1999 when the sectional ownership of the commercial building of this case was established, and there is no evidence to deem that the right to use the site has expired even until now.

D. Determination as to whether the Defendants acquired the right to use site

1) Relevant legal principles

Unless there are special circumstances such as otherwise stipulated by the rules or notarial deeds, a sectional owner’s right to use a site in an aggregate building is recognized as indivisiblely indivisible with the section for exclusive use (Article 20(1) and (2) of the Aggregate Buildings Act). Therefore, a purchaser who purchased a section for exclusive use from the constructor of an aggregate building who owns a site ownership and completed the registration of ownership transfer thereof shall acquire the ownership of a share in the site even if he/she did not complete the registration of transfer of land and public land corresponding to the right to use the site of the section for exclusive use (hereinafter “share in the site”). In addition, the effect of a mortgage established on only a section for exclusive use among the sections for exclusive use and the shares in a site owned by the same person shall be limited to a share in the attached or subordinate land, unless there are special circumstances such as stipulated otherwise by the regulations or notarial deeds. Therefore, the purchaser who purchased the section for exclusive use in an auction procedure based on a mortgage established on the section for exclusive use does not change even if the acquisition of ownership in such site did not reflect the share in the auction procedure on the section for exclusive use (see, etc.

2) Determination

On November 8, 199, the sectional ownership of the commercial building of this case was established on November 2, 199; thereafter, the establishment registration was completed on November 22, 1999; the maximum debt amount of 6,630,000,000 won; the debtor 00,000 won; and the establishment registration was completed on November 22, 199; Defendant 1 and Defendant 2 purchased No. 1 and 1 of the commercial building of this case, each section of exclusive ownership, at the auction procedure following the decision on commencement of auction as of November 1, 2007; Defendant 2 completed the registration of ownership transfer to Defendant 3 and Defendant 4 on January 1/2 of 2009; Defendant 4 acquired the entire right to use the commercial building of this case as of January 1, 2009; Defendant 2 acquired the right to use the building site of this case by acquiring the right to use from Defendant 2 as of April 19, 2013.

E. Sub-committee

Therefore, since long-term construction failed to acquire the right to use the site for the commercial building of this case, the plaintiff's assertion on the premise that the defendants did not have the right to use the site for the commercial building of this case is without merit without any further review.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is dismissed in its entirety as it is without merit. Since the part against the defendants in the judgment of the court of first instance is unfair with different conclusions, it is revoked and all of the plaintiff's claim corresponding to the revoked part is dismissed. Since the plaintiff's appeal and the claim extended in the trial are without merit, it is dismissed in its entirety. It is so decided as per Disposition.

Judges Cho Jae-young (Presiding Judge)